Code of Civil Procedure, 1908 — Order XVIII Rule 17 & Section 151 — Scope, Object, and Parameters for Recalling Witness / Reopening Evidence

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
S.V.N. BHATTI; J., N.V. ANJARIA; J.
SLP (C) Nos. 2744-2746 of 2024; August 04, 2026
K. BHARATHAMMA versus BANDARU SAKKU BAI AND OTHERS
Code of Civil Procedure, 1908 — Order XVIII Rule 17 & Section 151 — Scope, Object, and Parameters for Recalling Witness / Reopening Evidence – Nature of Power -Power under Order XVIII Rule 17 CPC is a discretionary, facilitator power-cumdiscretion exclusively vested in the Court to enable it to clarify any doubt that may have arisen during the examination of a witness – Cannot be used to Fill Gaps or
Lacunae: The power under Order XVIII Rule 17 CPC cannot be invoked by a party
or by the Court to fill up gaps, omissions, or lacunae in evidence already led and
closed, nor to allow a party to embellish, refine, or improve its case at a later stage
– Exclusivity of Examination – Order XVIII Rule 17 CPC enables the Court to put
questions to a recalled witness – it does not empower the Court to recall a witness
for the purpose of further examination-in-chief or cross-examination by either party
– “No Prejudice” Is Not a Valid Ground – Reopening evidence or recalling a witness
cannot be permitted merely on the specious ground that doing so would not cause
prejudice to the opposing side – Absence of prejudice is not a valid yardstick – an
independent justification must exist before invoking Order XVIII Rule 17 CPC –
Frequent resort to Order XVIII Rule 17 CPC, especially at the fag end of a suit when
final arguments are underway, leads to an abuse of the court process, delays
litigation, and cannot be allowed routinely or for the mere asking – Allowing the
appeal, the Supreme Court held that the High Court and Trial Court erred in law –
Noted that Order XVIII Rule 17 CPC is exclusively a discretionary tool for the Court
to clarify doubts and cannot be invoked to permit a party to cure lacunae or fill gaps
in evidence at the argument stage – held that the “lack of prejudice to the other side”
is not a legal ground to grant such recall, and ordering cross-examination of a
recalled witness under Order XVIII Rule 17 CPC is completely beyond the scope of
the provision. [Relied on Vadiraj Naggappa Vernekar (Dead) through LRs v. Sharadchandra Prabhakar
Gogate, (2009) 4 SCC 410; Paras 5-8]
[Arising out of impugned final judgment and order dated 15-09-2023 in CRP No. 458/2023 15-09-2023 in
CRP No. 496/2023 15-09-2023 in CRP No. 621/2023 passed by the High Court for The State of Telangana
at Hyderabad]
For Petitioner(s) Mr. Bijoy Kumar Jain, AOR
For Respondent(s) Mr. Mehmood Umar Faruqui, AOR Mr. Md. Zeeshan Ali, Adv. Mr. Amit Pandey, Adv.
J U D G M E N T
N.V. ANJARIA, J.
Leave granted.
2. In the present three appeals, the challenge is directed against common order dated
15.09.2023 of the High Court for the State of Telangana at Hyderabad1
, whereby the High
Court disposed of three Civil Revision Petitions filed by the defendant No.1-appellant
herein, in the proceedings of Original Civil Suit No. 489 of 2010, renumbered as Original
1 Hereinafter, “High Court”
2
Suit No. 1302 of 2022, before learned Additional Senior Civil Judge, Medchal-Malkajgiri
District2
.
2.1 The three Revision Petition Nos. 458 of 2023, 496 of 2023 and 621 of 2023 arose out
of the orders, all dated 08.12.2022, passed by the Trial Court in Interim Application3 No.
716 of 2022, I.A. No.717 of 2022 and I.A. No.718 of 2022, filed by the original plaintiffsrespondents herein. I.A. No.716 of 2022 was an application under Order XVIII Rule 17,
Code of Civil Procedure, 19084
seeking to recall PW-1 for marking document in the
evidence, whereas I.A. No.717 of 2022 and I.A. No.718 of 2022 were filed under Section
151, CPC and under Order VII Rule 14, CPC respectively praying to reopen the plaintiffs’
evidence and to receive documents as per the list of documents, respectively.
2.2 The Trial Court allowed the interim applications by order dated 08.12.2022. When the
appellant-original defendant No.1 challenged the said orders of the Trial Court, the High
Court disposed of all the three revision petitions by modifying the orders dated 08.12.2022
passed in three interim applications by inter-alia directing the Trial Court to complete the
exercise of recalling PW-1 and reopen the evidence of PW-1 and further to mark the
documents within stipulated time. Appellant-defendant No.1 was directed to complete the
process within the time indicated. The applicants of the interim applications were asked to
pay the cost of Rs.20,000/- to the respondents.
3. Before adverting to the pleadings in the Interim Applications and the prayers made
therein, in order to have the proper context, the facts relating to the suit may be set out.
By instituting the suit in the year 2010, the plaintiffsrespondents herein prayed for
declaration that they were the absolute owners of the suit properties mentioned in
Schedules A, B and C of the plaint bearing House No.11-71/2 (new), Old No.8-5,
admeasuring 400 sq.yds., No.11-71/3 (new), Old No.5-48, admeasuring 200 sq.yds. and
1171/4 (new) and Old No.8-68, admeasuring 200 sq.yds. in Survey No.433 to 438 and
448 to 452, situated at Ghatkesar village and Mandal, R.R. District. It was further prayed
to declare that the sale deeds dated 21.05.1987 and 31.11.1987, executed by defendant
Nos. 2 and 3 in favour of defendant No. 1 in respect of the land to the extent of 400 square
yards, were null and void. It was next prayed to perpetually injunct the defendants and
their men from interfering with the possession of the plaintiffs in respect of the suit
properties.
3.1 The case of the appellant herein who is defendant No.1 in the suit has been, interalia, that the appellant purchased Plot Nos.7 and 8 by way of two registered sale deeds
in the year 1987 as stated above. It was the case that the appellant has been in
uninterrupted possession of the suit properties for more than last 23 years. It appears that
the appellant had also filed Original Suit No.348 of 1988 against the plaintiffs in the Court
of Principal District Munsif, R.R. District, wherein the decree of perpetual injunction dated
21.11.1990 was passed against the plaintiffs, in operation till date. In view of the decree
in favour, the appellant obtained a sanction to construct compound wall, two rooms and a
bathroom on the said property. Pursuant to the permission granted by the Gram
Panchayat, the construction was stated to have been carried out. Writ Petition No.23459
of 2001 came to be filed by the appellant against the plaintiffs seeking to implement the
aforementioned decree for injunction dated 21.11.1990. The competent police authority
was directed by the court to implement the injunction decree.
2 Hereinafter, “Trial Court”
3 Hereinafter, “I.A.”
4 Hereinafter, “CPC”
3
3.2 The respondents-original plaintiffs thereafter filed the instant proceedings of
Original Suit No.489 of 2010 (New No.1302 of 2022) for the relief of declaration etc. as
mentioned above. In the written statement, the appellantdefendant No.1 pleaded that he
was a bona fide purchaser and further he had purchased two plots by two registered sale
deeds, that they were accordingly the lawful owners in possession thereof and that at no
point of time had raised any dispute in respect of the title of the appellant over the said
plots.
3.3 The plaintiffs put forward the claim that they had been residing in the suit properties
from 1970 onwards. The appellant-defendant No.1 denied the existence of any house
property and also denied the alleged door numbers. The appellant-defendant No.1 filed
I.A. No.5 of 2017 seeking to appoint an Advocate Commissioner to ascertain the status,
to inspect external features of the suit properties, which, however, was opposed by the
plaintiffs by filing counter affidavit.
3.4 In course of the proceedings, the plaintiffs admitted that no house existed on the
properties in question. Based on the above admission of the plaintiffs, the Trial Court did
not entertain I.A. No.5 of 2017. Docket Order dated 16.02.2018 was passed by the Trial
Court to dispose of I.A. No.5 of 2017. The order reads as under,
“Heard, both sides. The respondent filed counter. In the counter para No.5, the respondent
admitted that the houses were collapsed in the heavy rents of 2016. Hence, there is no house
existing in the plaint schedule property. When the respondent admits that there is no structure
existing in the suit schedule property. Nothing needs to be observed by the advocate
commissioner in the suit schedule land. Hence, I feed nothing can be added by appoint advocate
commissioner. Hence, the petition is closed. No costs.”
3.5 The suit proceedings progressed, recording of evidence of both the sides was
completed and at the stage when final arguments were heard before the court and the
arguments of the side of the appellant were concluded, the respondents preferred the
aforesaid three Interim Applications being I.A. No.716 of 2022, I.A. No.717 of 2022 and
I.A. No. 718 of 2022. Thereunder, the plaintiffs sought to reopen the evidence for leading
further evidence which was the prayer in first two interim applications whereas the prayer
in I.A. No.718 of 2022 was to receive the documents in the proceedings as per the list by
condoning delay.
3.6 The pleadings and the grounds in support of the prayers in the three applications
were almost identical and travelled parallel. What was pleaded was inter-alia that while
arguing the case, the defendant raised new pleas which were not found in the written
statement and the evidence, in particular with regard to existence of houses on the suit
properties along with the house numbers. It was further stated that the plaintiffs-applicants
had filed number of documents, however, further documents with regard to the existence
of the house numbers were to be filed as per the legal advice, and that certain documents
relating to the house showing its existence were originally received by the Gram
Panchayat, which later came to be converted into Municipality.
3.7 The plaintiffs-applicants wanted the documents relating to the house number of the
subject matter properties made available by the Municipality, documents relating to District
Panchayat Officer dated 18.07.2018 as well as demand register for the years 2017 and
2018. It was prayed that in view of such circumstances, the evidence of plaintiffs may be
permitted to be reopened.
3.8 The Trial Court allowed all the three applications by separate orders dated
08.12.2022 with similar and identical reasoning. The Trial Court noted that the issues were
settled, that both the parties had adduced their evidence and further that on behalf of the
4
plaintiffs, Witness Nos.1 to 4 were examined and that Exhibits A1 to A35 were marked.
The Trial Court further observed that PW-1 had failed to produce certain documents
showing house numbers of the properties. It was observed that though it was at the fag
end of the suit, however, since no prejudice would be caused to the respondents if the
prayers were allowed, the evidence of PW-1 was permitted to be reopened.
3.9 The High Court modified the orders passed by the Trial Court in the said three
interim applications. The High Court passed the following modified directions, essentially
exercising powers under Order XVIII Rule 17, CPC,
“a. The Court below is directed to complete the entire exercise of recalling and
reopening the evidence of PW-1 and marking of the said documents within a period of ten
(10) days from the date of receipt of a copy of this order.
b. The petitioner herein is directed to complete the cross- examination of PW-1 within
one week thereafter.
c. The respondent Nos. 1 to 10 herein who are the petitioners in the underlying
interlocutory applications i.e., I.A. No.716 of 2022, I.A. No. 717 of 2022 and I.A. No.718 of
2022, are directed to pay Rs.20,000/- to the petitioner herein towards costs.”
4. Heard learned counsel Mr. C. Mukund along with learned advocate on record Mr.
Bijoy Kumar Jain for the appellant and learned advocate on record Mr. Mehmood Umar
Faruqui for the respondents.
5. In passing the impugned modified directions, the High Court has essentially invoked
the provision of Order XVIII Rule 17, CPC. The provision reads as under,
“Order XVIII
Hearing of the Suit and Examination of Witnesses
17. Court may recall and examine witness.—The Court may at any stage of a suit recall any
witness who has been examined and may (subject to the law of evidence for the time being in
force) put such questions to him as the Court thinks fit.”
5.1 A bare reading of the aforesaid provision makes it obvious that the right under the Rule
to put a question at any stage of the suit or recall any witness for that purpose is given to
the court. The court can put questions to the witness. No cross-examination is ordinarily
open without leave on the answers to the questions put by the Judge. The scheme and
object of the provision suggest that the power to recall a witness is in the realm of
discretion of the court.
5.2 In Vadiraj Naggappa Vernekar (Dead) through LRs vs. Sharadchandra Prabhakar
Gogate5
, this Court highlighted the matters to be considered for invoking the provision
and inter-alia observed that the power under the provision of Order XVIII Rule 17, CPC
can be invoked to enable the court to clarify any doubt that may have arisen in course of
the examination of a witness. A witness may be recalled by the court on its own motion or
on an application by any party to the suit.
5.3 The ambit of Order XVIII Rule 17, CPC, after deletion of Rule 17A with effect from
01.07.2002 came to be explained in K.K. Velusamy vs. N. Palanisamy6
. Rule 17A of
Order XVIII, CPC, as then existed, expressly provided for and permitted the reopening of
the evidence and recalling of a witness for further examination or crossexamination.
Observing inter-alia that after deletion of Rule 17A of Order XVIII, CPC, such power could
5
(2009) 4 SCC 410
6
(2011) 11 SCC 275
5
be drawn from Section 151, CPC, however, to be exercised to deal with any particular
procedural aspect not expressly or impliedly provided for in the CPC.
5.4 In Bagai Construction through its Proprietor Lalit Bagai vs. Gupta Building
Material Store7
, this Court observed that the scope and object of Order XVIII Rule 17,
CPC, was to enable the court to clarify doubts regarding evidence led by the party. It was
further stated that the provision was not meant to fill up the omissions in the already
adduced evidence. It was held that the power to recall a witness who has been examined
earlier cannot be exercised for further examination-in-chief or for adducing additional
material or evidence, for, such nature of power was available under Order XVIII Rule 17A,
CPC, which has been since deleted.
5.5 Several decisions of this court including K.K. Velusamy (supra) and Vadiraj
Naggappa Vernekar (supra) have consistently laid down that Order XVIII Rule 17, CPC
is not to be utilised to permit a party to fill up lacunae in the evidence. In Vadiraj Naggappa
Vernekar (supra), this Court stated thus,
“The said provisions are not intended to be used to fill up omissions in the evidence of a witness
who has already been examined.”
(Para 25)
5.6 In Shubhkaran Singh vs. Abhayraj Singh and Others8
, the court stated that the
power under this provision should not be exercised by the court lightly. The rule is that the
power which is in nature of discretion should be used sparingly and in exceptional cases.
The court read the provision of Order XVIII Rule 17, CPC, along with Section 165 of the
Evidence Act, 1872 which provides that a Judge may, in order to discover or obtain proper
proof of relevant facts, ask any question he may think fit in any form at any time to any
witness.
5.6.1 As per Section 165 of the Evidence Act, the parties cannot raise any objection to
any such question which may be put by any Judge, nor can cross-examine any witness
upon any answer given in reply to any question asked by the Judge, without the leave of
the court. It was observed that when the provision of Order XVIII Rule 17, CPC is
considered along with the provisions of Section 165 of the Evidence Act, what is suggested
is that the power to recall and re-examine the witness is exclusively that of the court trying
the suit.
5.7 A frequent resort to use of Order XVIII Rule 17, CPC, has the tendency to develop into
an abuse of process of the court and procrastination of litigation. The court should not
allow this provision to become a handy tool for a party to the suit proceedings to prolong
the litigation. This aspect was highlighted by this Court in Gayathri vs. M. Girish9
, in which
the court emphasized on completion of trial within a time schedule, observing that the
interlocutory applications containing prayers for reopening of the evidence and recalling
of witnesses have to be considered only in compelling facts and on acceptable reasons.
5.7.1 It was therefore observed in K.K. Velusamy (supra) that the power under Order
XVIII Rule 17, CPC as also under Section 151, CPC, is not intended to be used in a routine
manner and merely for askance. If permitted to be so used, it would defeat the very
purpose of expediting the trial, in addition that a dishonest litigant would gain undue
7
(2013) 14 SCC 1
8 2025 SCC OnLine SC 1028
9
(2016) 14 SCC 142
6
advantage by prolonging the proceedings under the pretext of recalling of witnesses or
reopening of evidence.
5.8 It is laid down as trite principle that the provision of Order XVIII Rule 17, CPC, cannot
be invoked on the spacious ground that recalling the witness or reopening the evidence
would not prejudice the other side. In Vadiraj Naggappa Vernekar (supra), the court
observed thus,
“The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in
appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. That is not the scheme or intention of
Order 18 Rule 17 CPC.”
(Para 28)
5.9 This Court in Ram Rati v. Mange Ram (Dead) through Legal Representatives and
Others10
, reemphasized that the power under this Rule cannot be invoked to fill up the
gaps in the evidence already led or on the ground that no prejudice would be caused to
the parties thereby. In the said case, this Court took the exception to the order of the trial
court, where the trial court exercised the powers on the consideration that recalling of
witness was necessary for left out points.
5.9.1 The Court observed thus,
“The settled legal position under Order 18 Rule 17 read with Section 151 CPC, being thus very
clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a
witness at the instance of the respondent “for further elaboration on the left out points”, is wholly
impermissible in law.”
(Para 18)
6. Summing up on the scope, nature and applicability of the provision of Order XVIII
Rule 17, CPC, on the basis of the provisions of law laid down in the judicial decisions
highlighted above, this provision is in the nature of powercum-discretion vested in the
court. It aims to become an aid to the court in the adjudicating process of the suit. The
provision is in the nature of a facilitator to the court in the suit proceedings, to be used and
invoked within the discipline of the trial and within the bounds of the rules of evidence.
6.1 The parameters for invocation and use of Order XVIII Rule 17, CPC, are thus wellestablished. It is not meant for a routine exercise. Nor it is a provision which can be
employed on mere asking by a party, unless the court wants any clarification on any aspect
of the evidence already led in the proceedings. Though the provision could be invoked at
the instance of a party to the suit, basically and essentially it is the discretionary power to
be exercised by the court itself. This provision can be put into play neither by the party nor
by the court itself to permit to fill up the gaps, omissions or lacunae in the evidence.
6.2 It is not permissible that the evidence by a party already led and settled is allowed
to be improved by reopening the evidence or recalling the witness under this Order of
CPC. The provision is not a tool whereby a party can embellish the evidence, fill in the
omissions therein or refine the evidence at a later stage.
6.3 Also, it is no valid yardstick to be employed for permitting reopening the evidence
or allowing recalling of a witness that such a course would not prejudice any party. It is no
valid ground for invoking the powers under Order XVIII Rule 17, CPC that a party to the
10 (2016) 11 SCC 296
7
proceedings will not be prejudiced. Not the absence of prejudice but an independent
justification must exist before the court can legitimately take resort to Order XVIII Rule 17,
CPC.
6.4 In Vadiraj Naggappa Vernekar (supra), the appellants sought to introduce the
evidence by recalling of witnesses which were available at the time the affidavit of such
witnesses were prepared. Neither new evidence was introduced nor new facts were
discovered subsequently. The court stated that it was not a case for recalling of the
witnesses.
6.5 The following observations made in Vadiraj Naggappa Vernekar (supra) stand
close to the facts and circumstances of the present case,
“As indicated by the learned Single Judge, the evidence now being sought to be introduced by
recalling the witness in question, was available at the time when the affidavit of evidence of the
witness was prepared and affirmed. It is not as if certain new facts have been discovered
subsequently which were not within the knowledge of the applicant when the affidavit evidence
was prepared.”
(Para 26)
7. The facts in the instant case show that when the plaintiffs filed interim applications
for reopening the evidence and recalling witnesses under Order XVIII Rule 17, CPC, the
issues in the suit were settled and after closure of the evidence, the final arguments had
travelled beyond half-way. Apart this aspect, what becomes important is that on behalf of
the plaintiffs, PW-1 to PW-4 were already examined and Exhibits A1 to A35 were marked.
Questions were put to PW-1 during crossexamination about house numbers of the suit
properties and what was pleaded by the plaintiffs that there were some admissions about
failure of PW-1 in filing certain documents showing the house numbers and that they had
not filed such documents. It was further stated that PW-3 and PW-4 who were also
examined and that all the witnesses on the side of the plaintiffs had denied the suggestion
that the properties with the house numbers were not in existence.
7.1 The above position obtained had the backdrop of plaintiffs’ filing I.A. No. 5 of 2017
seeking to appoint Advocate Commissioner to ascertain the existence of properties.
However, by Docket Order dated 16.02.2018 aforementioned, the said interim application
was closed by noting the admission of the respondents that the houses were collapsed
during heavy rains in the year 2016 and that no house mentioned as scheduled property
existed and that there was no structure. Therefore, permitting to reopen the evidence of
the plaintiffs and recalling PW-1 for the purposes like house numbers etc. was not to serve
any purpose. The interim application under Order XVIII Rule 17, CPC were apparently
filed as a delaying tactics and was destined to be a futile exercise.
7.2 In any case and in any view, it was not permissible in law for the court to exercise
the powers under Order XVIII Rule 17, CPC permitting the plaintiffs to recall their
witnesses and reopen the evidence. The directions passed by the High Court per se did
not fell within the purview and parameters of exercisable powers under Order XVIII Rule
17, CPC.
7.3 The direction in ‘b’ passed in the impugned order by the High Court is to complete
the cross-examination of PW-1 within stipulated time. Indeed, this direction is completely
beyond the scope of Order XVIII Rule 17, CPC. The Bombay High Court in Balkrishna
Shivappa Shetty vs. Mahesh Nenshi Bhakta and Others11
, was more specific in making
11 AIR 2003 Bom 293
8
a statement of law in paragraph 5 of the judgment to observe that Order XVIII Rule 17,
CPC does not permit a party to cross-examine a witness. The position is akin to one
obtained in the facts of the case.
7.3.1 This Court endorses to the following observations made by the Bombay High Court
in that regard in Balkrishna Shivappa Shetty (supra),
“…The said provision of law apparently does not deal with the subject of allowing the parties to
cross-examine the witness after such witness being recalled in exercise of powers thereunder. In
other words, the provisions contained in Order 18, Rule 17 of the Code do not empower the Court
to recall the witness for the purpose of cross-examination by either of the parties though it does
permit recall of witnesses for the purpose of examination by the Court itself…”
(Para 5)
7.4 It became evident that the plaintiffs, by filing interim applications under Order XVIII
Rule 17, CPC for recalling witnesses and seeking to produce documents under Order VII
Rule 14, CPC read with Section 151, CPC, admitted, and wanted to, fill up the gaps in the
evidence which was already led and closed, utilising the provision for curing the lacunae,
which was not permissible.
7.5 The frontline reasoning which pervaded the orders passed by the Trial Court
allowing three interim applications was that no prejudice would be caused to any party if
the plaintiffs were permitted to recall the witnesses and the evidence is reopened. This
premise, as stated above, could not have been the ground to invoke the provision of Order
XVIII Rule 17, CPC. The theory of “no prejudice” cannot be conveniently applied to justify
invocation of the provision of Order XVIII Rule 17, CPC.
8. While the orders passed by the Trial Court and modified by the High Court, in their
directions are mainly referable to the exercise of powers under Order XVIII Rule 17, CPC,
the prayer seeking to receive the documents was under Order VII Rule 14, CPC. This
prayer was inextricably interwoven with the prayers under Order XVIII Rule 17, CPC. The
directions in their totality, thus suffer from vices of illegality as above.
9. In view of the discussion above and the reasons supplied, the impugned order of
the High Court and the directions issued therein are not sustainable in law.
10. Resultantly, the impugned common order dated 15.09.2023 passed by the High
Court for the State of Telangana at Hyderabad in Civil Revision Petition Nos.458 of 2023,
496 of 2023 and 621 of 2023, is hereby set aside. The appeals are allowed.
The interlocutory applications, if any, shall not survive in view of the disposal of the
appeals as above.
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